(INDIANA CAPITAL CHRONICLE) — The fight over whether terminated pregnancy reports (TPRs) filed with the state are public records took a new turn Wednesday as lawyers argued in a hearing on a preliminary injunction that the documents are used to harass doctors who perform abortions. The two doctors who are fighting to block TPR releases also testified they haven’t submitted the reports since Dec. 23 — when a new federal rule on reproductive health care privacy went into effect. Instead, Dr. Caitlin Bernard and Dr. Caroline Rouse – both Indiana OB-GYNs — said they have sent information on the abortions performed to the Indiana Department of Health (IDOH) but haven’t filled out the full form upon advice of their hospitals’ counsel. “I’m concerned about my patients’ privacy and the release of my patients’ protected health information to the public for, as far as I can tell, no real good reason except to essentially make public citizens vigilantes,” Bernard said. Bernard and Rouse sued in February to block releases after IDOH entered into a settlement agreement with Voices for Life, a South Bend group. That agreement came out of the anti-abortion organization’s 2024 lawsuit against IDOH, filed when the agency stopped releasing the individual reports. Quarterly aggregated data is still made public. IDOH changed its practice following the implementation of Indiana’s near-total abortion ban. Abortions fell sharply, from hundreds of procedures each month to dozens, and agency officials said that put patient confidentiality at risk. The IDOH — under former Gov. Eric Holcomb — successfully argued that the TPRs are considered medical records that are exempt under the Access to Public Records Act. Voices for Life filed an appeal of that ruling. Then, in January, Gov. Mike Braun took office. IDOH settled with Voices for Life shortly after, agreeing to release the TPRs with redactions. Now, the department — through the Indiana Attorney General’s Office — is arguing the documents aren’t medical records. Marion County Superior Court Judge James Joven pointed out those differing positions. “Your argument faces those difficult hurdles,” he said. “(The doctors) were on the department side when the department was trying to protect against disclosure of these, what the department then called a medical record, and now the department has flipped.” The arguments Jefferson Garn, special counsel for the Indiana Attorney General, said these documents were released publicly for three decades and no one considered them medical records. He called it a simple reporting requirement about a procedure and added that the theory of the case is shifting into defamation. To earn a preliminary injunction, Rouse and Bernard must prove standing, irreparable harm and likelihood of success. Stephanie Toti, an attorney for the doctors, said the likelihood of success is strong because the TPRs fit the statutory definition of a medical record. A TPR includes details like age, address, education, gestational age of the fetus, type of procedure and previous pregnancy history. Doctors must also now include a diagnostic code allowing for the abortion under Indiana law, such as if there is a lethal fetal anomaly or the health risk to the mother. The statute says a medical record “means written or printed information possessed by a provider concerning any diagnosis, treatment, or prognosis of the patient.” Toti said the doctors also have both a legal and ethical duty to protect the information of their patients. She noted Bernard was disciplined by the Indiana Medical Licensing Board for releasing just a fraction of what is on a TPR to a reporter. But Toti spent extra time focusing on how the disclosure of TPRs can lead to harassment or violence against the doctors or the patients. Toti pointed to the Voices for Life website, which lists various doctors who have performed abortions in Indiana and alleged violations the anti-abortion group has culled from previously released TPRs before the restrictive abortion ban. Joven noted that the TPRs don’t specifically say the doctors violated law, though the website does. Instead, he said Voices for Life perceives them to be violations. Bernard testified about one example under her name: “illegal use” of mifepristone and misoprostol on an 18-week fetus. She acknowledged that early medication abortions are limited to 10 weeks under Indiana law. But the difference is mifepristone can be used to induce labor at any gestational age due to lethal fetal anomaly or health risks to the mother. This allows the fetus to be delivered and the mother to hold it and say goodbye. But Bernard said the TPR form doesn’t have the option of an induction abortion so the medication box is checked instead. Rouse testified that she is concerned the TPRs “can be taken out of context” by people that don’t have the medical expertise to interpret the information provided. In the past, anti-abortion groups have filed complaints with the attorney general based on the TPRs, including if a doctor filed a report late. The aggregate data does not include the names of the doctors or dates of procedure and filings. Joven, the judge, extended the temporary restraining order he had previously issued on behalf of the doctors until March 24 and will rule soon on the preliminary injunction. ...read more read less